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stead of the proof
45 Geo. 3.
been open- venient;' be it therefore enacted, that so much of the said recited act as relates to ed and air the certificates and proof of opening and airing such goods, wares, merchandize, and other articles, shall be, and is hereby repealed; and that after such orders for the openand certi- ing and airing of such goods, wares, and merchandize, and other articles, shall have been duly complied with, proof thereof shall be made by the oaths of the master of the quired by lazaret or vessel in which the goods, wares, and merchandize, and other arti c.10. 29.) cles, shall have been opened and aired, and of one of the guardians, or if there be no guardian, then of one of the officers authorized by the Commissioners of the customs, or any four of them, to act in the service of quarantine in such lazaret or vessel, or if there be no such officer, then by the oaths of two or more credible witnesses serving in the said lazaret or vessel, before the superintendant of quarantine, or his assistant, in case such opening and airing shall be had at a port or place where such superintendant or assistant shall be established, or otherwise before the principal officer authorized by the Commissioners of the customs, or any four of them, to act in the service of quarantine at such port or place; which oath such superintendant, assistant, or principal officer is hereby authorized to administer; and such superintendant, assistant, or principal officer, as the case may be, shall make certificate of such proof having been made; and upon the production of such certificate to the proper officer of the customs, authorized by the said Commissioners or any four of them, such goods, wares, or merchandize, and other articles, shall be liable to no further restraint or detention either at the port or place where such quarantine shall have been performed, or at any other place whereto they may be afterwards conveyed.
when the ver, &c.
VI. And be it further enacted, that it shall and may be lawful for his Majesty, his may order heirs and successors, by his or their order in Council, or for the Lords and others of ships com- his or their Privy Council, or any three or more of them, by their order from time to irg from America time, as often as they may see reason to apprehend that the yellow fever, or other highly infectious distemper prevails on the continent of America, or in the West Indies, to require that every ship and vessel coming from or having touched at any port or place on the continent of America, or in the West Indies, shall come to an anchor at certain places to be appointed from time to time by the Commissioners of his Majesty's go to cer- customs in England and Scotland, (who are hereby respectively authorized to make tain places such appointment) for the purpose of having the state of health of the crew of such ing liable ship or vessel ascertained before such ship or vessel shall be permitted to enter the port to quaran- whereto she may be bound, or any other port of Great Britain; but that such ship or vessel shall not be deemed liable to quarantine, unless it shall be afterwards specially ordered under that restraint.
yellow feprevails there, to
VII. And whereas it may be necessary for the public security to prevent all communication whatever with ships or vessels performing quarantine without clean bills limits of of health; and the danger of such communication is greatly increased by persons not lotte being prevented from going within the stations allotted for the performance of quaranquarantine tine by such ships or vessels;' be it therefore further enacted, that it shall and may be lawful to and for his Majesty, his heirs or successors, by his or their order or orders in clean bills Council, notified by proclamation, or published in the London Gazette, to prohibit all persons, ships, boats, and vessels whatsoever, from going under any pretence whatsoprohibited ever, within the limits of any station, which, by his Majesty, his heirs or successors, by any such order or orders in Council, has been, or may be assigned for the performance of quarantine by any ships or vessels without clean bills of health; and that if any person whatsoever after such notification or publication of any such order or orders in Council, shall presume under any pretence whatsoever, to go with any ship, boat, or vessel within the limits of any such station, he or she shall, for every such offence, forfeit and pay the sum of five hundred pounds.
VIII. And be it further enacted, that if any person shall knowingly and wilfully Penalty forge or counterfeit, interline, erase, or alter, or procure to be forged or counterfeited, on forging. interlined, erased, or altered, any certificate directed or required to be granted by any false certiorder of his Majesty, his heirs or successors, in Council now in force, or hereafter to be quired by made touching quarantine, and the prevention of infection, or shall publish as true any order in such forged or counterfeited, interlined, erased, or altered certificate, knowing the felony same to be forged or counterfeited, interlined, erased, or altered, or shall knowingly without and wilfully utter and publish any such certificate, with intent to obtain the effect of a true certificate to be given thereto, knowing the contents of such certificate to be false, he or she shall be adjudged guilty of felony, and shall suffer death as in cases of felony, without benefit of clergy.
IX. And be it further enacted, that the Consuls and Vice Consuls of his Majesty, Consuls, his heirs and successors, shall, and are hereby empowered to administer oaths in all cases administer respecting quarantine, in like manner as if they were magistrates of the several towns or oaths. places where they respectively reside.
may admi nister
X. And be it further enacted, that in all cases wherein by virtue and in pursuance of Persons authis act, or any other now in force or hereafter to be made touching quarantine, any take exa examinations or answers shall be taken or made upon oath, the person who shall be au- minations thorized and required to take such examinations and answers, shall, and shall be deemed to have full power and authority to administer such oaths; and if any person who eaths; peshall be so interrogated or examined shall wilfully swear falsely to any matter, concern- perjury, ing which such person shall depose or make oath on such examination or in such answer, &c. on or if any person shall procure any other person so to do, he or she so swearing falsely &c. or procuring any other person so to do, shall be deemed to have been guilty of, and shall be liable to be prosecuted for wilful and corrupt perjury or subornation of wilful and corrupt perjury, as the case may be, and shall suffer the pains, penalties, and punishments of the law, in such case respectively made and provided.
The following is the form of an English Bill of Health, which is given at the customhouse, signed by the benchers, and costs five shillings, viz.
"Omnibus Christi fidelibus, ad quoas præsentes literæ pervenerint, nos ministri serenissimi principis domini nostri Georgii Tertii regis in portu civitatis Londini salutem.Cùm pium sit ac honestum veritati testimonium perhibere, ne error et deceptio præjudicii ipsam opprimat: cumque navis nuncupata
cujus nauclerus sub Deo est
quæ jam parata est a portu dictæ civitatis Londini
discedere et ab hinc Deo volente pro
anno salutis Christianæ secundùm
computationem ecclesiæ Anglicane millesimo septingentesimo
The subsequent is copied from a Bill of Health, given at Alicant în Spain, being the same with those of all the other parts of that kingdom; and differing only in form, from
those of Italy and other parts, this duplicate may suffice to shew the nature and contents of them all.
"Universis cujusvis auctoritatis salutem in Domino; nos regimen illustris civitatis Alicantis, et Ville de Muchamel. Testamur, quod dicta civitas et villa, Deo auspice, optimâ gaudent salute, et nullius contagiosi morbi vestigio inficiuntur; et fidem facimus à nostro portu discedere navem nominatam cujus dux est
nautis, et prout asservit viam dirigit versùs
anno à nativitate
Pro illustri et semper fidelissima civitate Alicantis,
OF EMBARGOES OR RESTRAINTS OF PRINCES.
An embargo is commonly understood to be a prohibition of ships sailing on the breaking out of a war, to hinder their giving any advice to the enemy; but it has a much more extensive signification; as they are not only stopped from the afore-mentioned motives, but are frequently detained to serve a prince in an expedition; and for this have often their lading taken out, if a sufficient number of empty ones are not procurable to supply the state's necessity, and this without any regard to the colours they bear, or whose subjects they are; so that it frequently happens, that many of the European nations may be forcibly united in the same service, at a juncture that most of their sovereigns are at peace and in amity with the nation against which they are obliged
Vattel lays it down, as a general rule, that a nation is not at liberty to seize that part of her enemy's property which is in her dominions at the time of the declaration, because it came into her power upon the faith of previously existing peace. But declarations of war are not construed to take effect merely from the time when a formal notification of hostility is given; there are certain preceding acts, of a hostile nature, which are deemed to be virtually declarations of war, to certain intents and purposes, though they may be explained away and annulled by a subsequent accommodation between the governments. When, therefore, a nation receives certain injuries, for which she sees no prospect of obtaining redress, she is reduced to consider hostilities as virtually declared, and issues an embargo upon the commerce of the offending state, then lying within her ports, in order to indemnify herself in the only way in which, perhaps, it may be possible for her to obtain indemnification at all. In this case, the hostile property, which comes to her hands after the commission of the injury, may be, and is regarded, as having come to her hands after the declaration of hostilities, though that declaration have not been duly and formally notified; and, therefore, the case of embargo is not within the prohibition of Vattel, which reaches to the exemption only of goods in our hands at the time of the declaration, and does not cover property coming into our territory after that declaration, whether such declaration be only virtual, or whether it be announced with all the fulness of formality. Upon the right of seizing on property under this implied kind of declaration, and upon the effect of the seizure in
the event of an accommodation being adjusted before the formal notification of war, Sir William Scott most satisfactorily comments in the case of the Boedes Lust. In 5 Rob. that case, an embargo had been laid upon Dutch property by Great Britain, previously Rep. 246. to an open declaration of war, but under such circumstances of injustice on the part of Holland, as were considered by the British Court as amounting to an implied declaration of war; and the formal declaration, which afterwards supervened, was deemed to have a retrospective effect, confirming all that had been done by the embargo under the implied declaration. "The seizure," said Sir William Scott," was at first equivocal, and if the matter in dispute had terminated in reconciliation, the seizure would have been converted into a mere civil embargo, so terminated. That would have been the retroactive effect of that course of circumstances. On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way. It impresses the direct hostile character upon the original seizure; it is declared to be no embargo; it is no longer an equivocal act, subject to two interpretations; there is a declaration of the animus, by which it is done; that it was done hostili animo, and is to be considered as an hostile measure ab initio. The property taken, is liable to be used as the property of persons trespassers ab initio, and guilty of injuries, which they have refused to redeem by an amicable alteration of their measures. This is the necessary course, if no particular compact intervenes for the restitution of such property taken before a formal declaration of hostilities." So, in the case of the Herstelder, Sir William Scott observed, I Rob. “That actual hostilities are not to be reckoned merely from the date of the declaration, Rep. 114. but that such declaration has been applied with a retroactive force."
Some have doubted the legality of the thing, but it is certainly conformable to the law both of nature and nations, for a prince in distress to make use of whatever vessels he finds in his ports, that are fit for his purpose, and may contribute to the successes of his enterprizes; but under this condition, that he makes them a reasonable recompence for their troubles, and does not expose either the ships or men to any loss or damage.
An embargo laid on ships and merchandize in the ports of Great Britain by virtue of the King's proclamation is strictly legal, when the proclamation does not contradict the old laws, or tend to establish new ones; but only to enforce the execution of such laws as are already in being, in such manner as the King shall judge necessary: thus the established law is, that the King may prohibit any of his subjects leaving the realm: a proclamation therefore forbidding this in general for three weeks, by laying an embargo upon all shipping in time of war, will be equally binding as an act of Parliament, because founded upon a prior law. Blackstone's Comment. vol. 1. p. 270.
But besides embargoes in time of war, there are others of a special nature, which sometimes arise from a very extraordinary emergency in time of peace, and which are founded upon state necessity, or the salus populi, and which are termed civil embargoes; yet the proclamations by which they are laid may be illegal, contradicting an established law. This was the case respecting the embargo to prevent the exportation of corn in 1766; such exportation being allowed by law at the time; and therefore the preamble to the stat. 7 Geo. 3. c. 7. for indemnifying all persons advising or acting under the order of council, laying an embargo on all ships laden with corn or flour, during the recess of Parliament in 1766, says "which order could not be justified by law, but was so much for the service of the public, and so necessary for the safety and preservation of his Majesty's subjects, that it ought to be justified by act of Parliament." This embargo, as was allowed, saved the people from famine; yet it was declared illegal by the above act of the legislature, including the King himself who laid it, which was therefore needful to sanctify it; and the proprietors of the embargoed ships and cargoes were accordingly indemnified by government.
This civil embargo cannot be imposed upon British ships in a foreign port, unless by the concurring authority of the state to which that port belongs; for the King has no right to disturb the peace of neighbouring nations by any seizures, however useful to the interests of his own people. This may be collected from the judgment of Sir William 2 Rob. 1. Scott, in the case of the Gertruyda. Even within the jurisdiction of this kingdom the prerogative of the King, with respect to the imposition of embargoes, is of a nature by no means unlimited, or absolute, as is sufficiently shewn by the embargo of 1766 abovementioned. Among the many reports that are to be found, of the great case of Sands and the East India Company, there is one in Salkeld, p. 32, where it is set down as agreed, that the King may lay embargoes; but then it must be for the public good, and not for the private advantage of a particular trader or company.
15 Hen, 6. c. 3.
18 Hen, 6. c. 8.
20 Hen. 6. c. 1. s. 2.
OF PROTECTIONS, PASSPORTS, AND SAFE CONDUCTS.
PASSPORTS are commonly granted to friends, and safe conducts to enemies, though custom has made the meaning of those terms to be much the same in this place: in a military treatise they would be differently construed; but they only signify here that protection a prince affords to either ships or men against the afore-mentioned embar goes, or his granting to some individuals a leave to trade, denied to others, or his permission for them to come into his kingdom while a general prohibition subsists, and sometimes even during a war with a state whose subjects they are. It is a permission from a neutral state to the captain or master of a ship to proceed on a voyage proposed, and usually contains his name and residence, the name, description, and destination of the ship, with such other matters as the practice of the place requires. This document is indispensably necessary for the safety of every neutral ship. Hubner says, that this is the only paper that is rigorously insisted upon by the Barbary corsairs, by the pro duction of which alone, their friends are protected from insult.
This has often happened in our disputes with Spain, where our ships went currently in the beginning of the war commenced in 1718, and on many other occasions, under the protection of a pass, which his Catholic Majesty granted to several, and which served for one voyage: these passes had blanks left for the names of ships, captains, &c. and at first cost about twenty dollars; though, when a stop was put to granting any more, their price rose in proportion to their scarcity; and the few who had any remaining, made a very considerable advantage of them: the same has been practised by many of our former Kings, and confirmed by several subsequent acts, viz.
In all safe conducts to be granted to any persons, the names of them, of the ships, and of the masters, and the number of the mariners, with the portage of the ships, shall be expressed.
Merchants aliens may lade ships of Spain, and other parts, adversaries and enemies of the King, if the masters, or merchants of such ships have letters patent of the King of his safe conduct, making mention of the name of the ships, and of the masters; and if any such ship charged with such merchandizes of such merchants be taken upon this sea, by the King's people, not having the King's letters patent within the board of such ships at the day of the taking, nor that such letters patent be in the Chancery inrolled, the takers may enjoy the same.
All letters of safe conduct to be granted to the King's enemies, or others, shall be inrolled in Chancery, before such letters be delivered; and all letters of safe conduct, not inrolled before delivery, shall be void.
If any goods be taken by the subjects of the King upon the sca, charged in any ship